New electoral campaign finance laws in the ACT

Updated 5 Jul 2016

Introduction

Changes to the electoral campaign finance laws relating to ACT Legislative Assembly elections took effect from 3 March 2015. This page provides a summary of the electoral funding, expenditure and financial disclosure provisions as they will operate in the ACT from that date. This summary is not a substitute for the law. Individuals and organisations are encouraged to obtain a copy of the ACT Electoral Act 1992 from www.legislation.act.gov.au and seek their own legal advice if necessary.

The ACT’s election funding, expenditure and financial disclosure scheme is administered by the ACT Electoral Commissioner and the staff of Elections ACT.

Assistance on any aspect of the scheme may be obtained from Elections ACT.

Handbooks detailing the requirements of the funding and financial disclosure scheme as it will operate in the ACT from 3 March 2015 are being prepared. They will be made available on the Elections ACT website as soon as possible.

Executive summary

Changes to the electoral campaign finance laws relating to ACT Legislative Assembly elections have been made by the Electoral Amendment Act 2015. This Act was passed by the Assembly on 19 February 2015 and commenced on 3 March 2015. The major changes made by this Act are set out below.

The removal of caps on donations. The previous cap on donations of $10,000 in one financial year to an ACT political entity for ACT election purposes has been removed. There is no longer a limit governing the amount that can be donated to a political entity in the ACT. However donations of $1,000 or more must still be declared to the ACT Electoral Commission.

The removal of the restriction on receiving donations from organisations and persons not enrolled in the ACT for use on ACT elections. Political entities may now receive donations from individuals irrespective of their place of residence and from any other entities.

Election funding for parties and non-party candidates has been increased: each group of party candidates and each ungrouped candidate that achieves at least 4% of the formal votes in their electorate will receive $8 per vote in 2016 (indexed by CPI for future elections) – compared to $2 per vote at the 2012 election.

“Party grouping”has been redefined – to remove associated entity from within the bounds of the party grouping category. Associated entities will now be subject to an expenditure cap independent from an associated party or MLA.

A decrease in the electoral expenditure caps to $40,000 for the 2016 election, indexed annually thereafter. The expenditure caps have been decreased from $60,000. The expenditure caps relate to expenditure on ACT election campaigns during the capped expenditure period, which will start on 1 January in election years from 2016. The expenditure caps are:

$40,000 per candidate to a maximum of 25 candidates (5 candidates for each of the 5 electorates) for party groupings (allowing for $1 million total expenditure for a party fielding 25 candidates);

$40,000 per non-party MLA or non-party candidate;

$40,000 per third party campaigner; and

$40,000 per associated entity.

The removal of the prohibition on a third party campaigner to act ‘in concert’ with another entity where the expenditure is greater than the expenditure cap. Third party campaigners are now able to work in association with another third party campaigner as long as the electoral expenditure incurred by each entity is not greater than $40,000.

The removal of the ACT election account concept. Political entities are no longer required to quarantine expenditure for ACT elections within a defined ACT election bank account.

“Anonymous gift” has been redefined – to a gift made anonymously that is less than $1000,removing the concept of “small anonymous gift”. Anonymous gifts of up to $1,000 each may now be received up to a total of $25,000 per party, MLA, candidate or associated entity, in a financial year. Previously, the prohibition on receipt of anonymous gifts totalling more than $25,000 only applied to small anonymous gifts of $250 or less, with no restriction on the receipt of gifts of more than $250 but less than $1,000.

“Free facilities use” has been defined – to mean a gift of the use of facilities for a routine meeting of the entity receiving the gift. It includes the use of a room and equipment necessary for conducting a meeting in the room, but does not include any food, drink or other gift associated with the use of the facilities. The use of free facilities does not need to be included in the regular quarterly reporting of gifts received of more than $1000. The value of each provision of free facilities use does not need to be separately recorded in relation to each date of receipt in annual returns.

A change to the annual reporting requirements for associated entities so that name and address details relating to amounts received of $1000 or more are required to be disclosed. Previously these details were required to be disclosed regardless of the amount received, with some exceptions.

Changes to the timing for the regular reporting of gifts so that:

In an election year, if the value of the gift or gifts received from a person reaches $1,000 in the financial year between 1 April and 30 June, the declaration must be made to the Electoral Commissioner by 7 July;

In an election year, if the value of the gift or gifts received from a person reaches $1,000 in the financial year after 30 June and before the end of polling day, the declaration must be made to the Electoral Commissioner 7 days after the total amount received from the person reaches $1,000; and

In a non-election year, or in the first quarter (1 January until 31 March) of an election year, if the value of the gift or gifts received from a person reaches $1,000 in the financial year, the declaration must be made to the Electoral Commissioner within 30 days of the end of the financial quarter in which the total amount received from the person reached $1,000.

An extension to the deadline for submission of annual returns so that annual returns must be provided to the Electoral Commissioner no later than 31 August each year. This has increased the timeframe by a month.

Clarification that gifts received by MLAs in their capacity as Ministers must be declared in MLA annual returns.

A restriction on payments between associated parties so that an ACT registered political party may not use payments received of more than $10,000 in a financial year from a related party, for the purposes of incurring ACT electoral expenditure.

A change to reporting requirements relating to debts so that all outstanding debts, including debts in dispute, are disclosed to the Electoral Commissioner. As per the change to the timing of annual report submissions, the reporting of debts must be made to the Electoral Commissioner no later than 31 August each year.

An alteration to the laws governing the appointment of reporting agents – so that the appointment of a new reporting agent cancels any previous appointment. This restricts each political party, MLA and candidate to a single reporting agent.

A change to the law covering the publishing of a donor’s home address so that only the donor’s suburb, postcode or post office box details are made available for public inspection on the Commission’s website. Full address details will still be available for public inspection at the office of the Electoral Commissioner.

Introducing the concept of and a definition for ‘Australian government body’, to ensure that such bodies are not treated as third-party campaigners.

Definitions

These definitions are provided to help you to understand the new provisions. These definitions provide a summary only. Readers are advised to consult the Electoral Act 1992 and/or the relevant election funding, expenditure and financial disclosure handbooks, available from the Elections ACT website or the Elections ACT office.

Anonymous gift means a gift that is made anonymously that is less than $1000.

Associated entity means an entity that:

is controlled by one or more parties or MLAs; or

operates, completely or to a significant extent, for the benefit of one or more parties or MLAs.

Capped expenditure period, for the 2016 election, is the period from 1 January 2016 until the end of polling day (15 October 2016).

Disclosure period for a candidate is the period beginning on the 31st day after the previous election, if the candidate contested that election, or if not, the earlier of the date:

the candidate publicly announced he or she would be a candidate;

the date the candidate was endorsed or pre-selected; or

the date the candidate is nominated as a candidate;

and ending on the 30th day after the relevant election.

The disclosure period for an associated entity and a third-party campaigner is the period beginning on the 31st day after the previous election and ending on the 30th day after the relevant election.

Electoral expenditure incurred in relation to the election falls within the following categories:

broadcasting electoral advertisements (including production costs);

publishing electoral advertisements in a news publication, including printed and electronic newspapers or periodicals (including production costs);

displaying electoral advertisements at a theatre or other place of entertainment (including production costs);

producing, broadcasting, publishing or distributing electoral matter, other than material included in any of the above (such as direct mailing, including printing and postage, business cards promoting candidacy, T-shirts, badges and buttons, pens, pencils and balloons);

consultant’s or advertising agent’s fees in respect of services provided or material used relating to the election; and

opinion polling and other electoral research undertaken to support the production of electoral matter included in any of the above.

Financial representative means:

for a party grouping – the reporting agent of the party;

for a non-party MLA – the MLA;

for a non-party candidate grouping – the candidate;

for a non-party prospective candidate grouping – the prospective candidate;

for an associated entity – the entity’s financial controller; or

for a third party campaigner:

if the third party campaigner is an individual – the third party campaigner; or

in any other case – the managing director (however described) of the third party campaigner.

Free facilities use means a gift of the use of facilities for a routine meeting of the entity receiving the gift. This includes the use of a room and the necessary meeting equipment, but does not include food, drink or any other gift associated with the use of the facilities.

Fundraising contribution means a payment made by a person or organisation as a contribution, entry fee or other payment to entitle the person or another person to participate in or gain a benefit from a fundraising event, and includes an amount paid for:

a ticket in a raffle; and

an item at a fundraising auction; and

a meal or beverage; and

attending a conference, seminar or similar function.

A fundraising contribution of $250 or less is not considered a gift. If a fundraising contribution is more than $250, the amount over $250 is considered to be a gift.

Fundraising event means an event, however described, where any part of the funds raised are retained by a political party, an MLA, an associated entity, a candidate, or a third party campaigner.

Gift means each of the following:

a disposition of property made by a person or organisation to someone else, without consideration in money or money’s worth or with inadequate consideration;

the provision of a service, other than volunteer labour, for no consideration or inadequate consideration;

the part of an annual subscription paid to a party for membership of the party that is more than $250;

the part of a fundraising contribution that is more than $250; and

gifts given to MLAs in their capacity as a Minister.

A gift does not include:

a disposition of property under a will;

an annual subscription paid to a party for membership of the party that is $250 or less;

a fundraising contribution of $250 or less;

a gift that is given to an individual in a private capacity for the individual’s private use and the individual does not use the gift solely or substantially for a purpose related to an election;

administrative expenditure funding paid by the ACT Electoral Commission; or

election funding paid by an electoral commission.

Non-party candidate grouping, for a candidate who is not a party candidate means:

the candidate; and

any other person who has incurred electoral expenditure with the authority of the candidate to support the candidate in contesting the election.

Non-party prospective candidate grouping, for a candidate who is not a party candidate means:

the prospective candidate; and

any other person who has incurred electoral expenditure with the authority of the prospective candidate to support the prospective candidate in contesting the election.

Party grouping for a registered party means:

the party;

an MLA for the party; and

a candidate for the party.

Prospective candidate means a person who is yet to be declared as a candidate for an election by the Electoral Commissioner, but has:

won preselection, or endorsement, to be a candidate for the party for an election;

publicly announced that he or she intends to be a candidate for the election; or

been nominated with the Electoral Commissioner to be a candidate for the election.

Third party campaigner means a person or organisation that incurs $1,000 or more in electoral expenditure in the disclosure period for an election, but does not include:

a publisher of a news publication (except a publication published for, or for the benefit of, a party, MLA, candidate, associated entity, party grouping, non-party candidate grouping or non-party prospective candidate grouping);

an Australia government body; or

the Legislative Assembly.

ACT Legislative Assembly election accounts

There is no longer a requirement to maintain an ACT Legislative Assembly election account.

Funding

Election Funding

Election funding is available in an election to registered political parties and non-party candidates if they meet the required criteria.

A registered political party is eligible to receive election funding for the votes obtained by its endorsed candidates who together polled at least 4% of the total number of formal first preference votes cast in an electorate. For the purpose of determining the funding entitlement, a vote for a party candidate is taken to be cast for the party and not the candidate. The payment is made to the registered officer of the party.

A non-party candidate is eligible to receive election funding if he or she polls at least 4% of the total number of formal first preference votes cast in the relevant electorate. The payment is made to the candidate.

The amount each vote is worth in election funding is worked out according to the formula set out at section 207 of the Electoral Act 1992. For the period ending 31 December 2016 (and therefore applicable for the 2016 election), the rate is $8 per eligible vote. The rate will be recalculated twice each year after 2016 by multiplying the previous rate by the all groups consumer price index number (being the weighted average of the 8 capital cities) for the September and March quarters, and will apply for a period of six months ending 30 June and 31 December, respectively.

No party or candidate is obliged to accept public funding.

Election funding is a direct payment scheme. There is no requirement for any eligible political party or non-party candidate to lodge a claim for their election funding entitlement. The ACT Electoral Commissioner will automatically pay those eligible their entitlement once the voting figures are finalised.

Administrative funding

Administrative funding is available to parties with representation in the Legislative Assembly and non-party MLAs. Administrative funding is currently (2015) paid at the rate of $21,322.64 per calendar year for each MLA. If a party MLA is not an MLA for the whole of the year, then the amount payable is calculated according to the number of days in the year that the MLA was a party MLA. Similarly, if a non-party MLA is an MLA for part of the year, then the amount payable is calculated on the basis of the number of days the non-party MLA is an MLA. The maximum amount paid is indexed each year.

The payment will be made in instalments at the 2015 rate of $5,330.66 (indexed each year) after the end of each quarter to the relevant party registered officer or non-party MLA.

Caps on electoral expenditure incurred

Electoral expenditure is incurred when the service or product to which the expenditure relates is provided or delivered.

The expenditure cap for a:

party grouping is $40,000 multiplied by the number of party candidates contesting the election, to a maximum of 5 in an electorate (that is, if contesting all electorates, the maximum is $40,000 x 25 = $1,000,000);

non-party MLA or non-party candidate is $40,000;

third party campaigner is $40,000; and

associated entity is $40,000.

A penalty applies for breaching the cap on electoral expenditure. The penalty is twice the amount by which the electoral expenditure exceeds the expenditure cap.

Disclosure

Disclosure of gifts received

When a party grouping, associated entity, non-party MLA, non-party candidate grouping or non-party prospective candidate grouping receives a gift, or sum of gifts, totalling $1,000 or more, during the relevant period, the financial representative of the party grouping, associated entity, non-party MLA, non-party candidate grouping or non-party prospective candidate grouping, respectively, is required to submit a return to the ACT Electoral Commissioner detailing the name and address of the giver of the gift, the amount of the gift and its date of receipt.

The recent changes to the timing for the regular reporting of gifts mean that:

In an election year, if the value of the gift or gifts received from a person reaches $1,000 in the financial year between 1 April and 30 June, the declaration must be made to the Electoral Commissioner by 7 July;

In an election year, if the value of the gift or gifts received from a person reaches $1,000 in the financial year after 30 June and before the end of polling day, the declaration must be made to the Electoral Commissioner 7 days after the total amount received from the person reaches $1,000; and

In a non-election year, or in the first quarter (1 January until 31 March) of an election year, if the value of the gift or gifts received from a person reaches $1,000 in the financial year, the declaration must be made to the Electoral Commissioner within 30 days of the end of the financial quarter in which the total amount received from the person reached $1,000.

The relevant period for this purpose is a financial year for a party grouping and a non-party MLA and their associated entities. For a non-party candidate grouping or non-party prospective candidate grouping it is the period beginning on the 31st day after the previous election, if the candidate contested that election, or the earlier of the date:

the candidate publicly announced they would be a candidate; and

the date the candidate is nominated as a candidate; and

ending on the 30th day after the relevant election.

A non-party prospective candidate grouping is taken to be the non-party candidate grouping once the candidate is declared to be a candidate following the close of nominations.

A reference to receipt of gifts of $1,000 or more includes the receipt of gifts-in-kind that are valued at $1,000 or more.

Election returns

The reporting agents of parties (with respect to party groupings), non-party MLAs, non-party candidate groupings, associated entities and third party campaigners are required to lodge election expenditure returns within 60 days after polling day in an election. The return must list expenditure on specific items where the expenditure is incurred during the capped expenditure period.

Non-party candidates are also required to lodge a return listing the total amount of gifts received during the disclosure period. If the sum of the gifts received from a person or organisation is $1,000 or more, the return must also list the name and address of the giver, the amount received and the date of receipt. The value of a gift-in-kind must be declared and whether the gift-in-kind was used for electoral expenditure, and the amount used.

The disclosure period for this purpose is the period beginning on the 31st day after the previous election, if the candidate contested that election, or the earlier of the date the candidate publicly announced they would be a candidate, and the date the candidate is nominated as a candidate, and ending on the 30th day after the relevant election.

Third party campaigners must also lodge a return listing the total amount of gifts received, where the gifts or gifts is used to incur electoral expenditure. If the sum of the gifts received from a person or organisation is $1,000 or more, the return must list the name and address of the giver, the amount received and the date of receipt.

Broadcasters and publishers must lodge returns, within 8 weeks of polling day, disclosing information regarding electoral advertisements broadcast or published by their organisation during the pre-election period.

The pre-election period is from 36 days prior to polling day until the end of polling day.

Annual returns (for the 2014/2015 year onwards)

Registered political parties and MLAs are required to lodge annual returns listing:

the total amount received in the financial year;

the name and address of the payer and the amount received where the sum of all amounts received is $1,000 or more (this may be made up of a number of payments under and/or over $1,000 received during the year);

whether the amount received was a gift, gift-in-kind or other payment;

whether the gift-in-kind was used, or is intended to be used, for the purpose of incurring electoral expenditure, and the relevant amount of expenditure;

the total amount of expenditure during the financial year;

the total amount of debts outstanding at the end of the financial year; and

the name and address of the person or organisation to whom an amount of $1,000 or more is owed, and the amount owed, at the end of the financial year, including disputed debts.

MLAs are required to lodge annual returns listing:

total amount received in the financial year;

the name and address of the payer and the amount received where the sum of all amounts received is $1,000 or more (this may be made up of a number of payments under and/or over $1,000 received during the year);

whether the amount received was a gift, gift-in-kind or other payment;

whether the gift-in-kind was used, or is intended to be used, for the purpose of incurring electoral expenditure, and the relevant amount of expenditure;

the total amount of expenditure during the financial year;

the total amount of debts outstanding at the end of the financial year, including disputed debts; and

the name and address of the person or organisation to whom an amount of $1,000 or more is owed, and the amount owed, at the end of the financial year.

Associated entities are required to lodge an annual return listing:

total amount received in the financial year;

the name and address of the payer and the amount received from each payer where the sum of all amounts received is $1,000 or more, except where the payment relates to revenue from the supply of food and drink in accordance with a licence held under the Liquor Act 1975, revenue from playing of gaming machines in accordance with a licence held under the Gambling Machine Act 2004 or revenue from membership fees where the fee is less than $250 per annum;

whether the amount received was a gift, gift-in-kind or other payment;

whether the gift-in-kind was used, or is intended to be used, for the purpose of incurring electoral expenditure, and the relevant amount of expenditure;

the total amount of expenditure during the financial year;

the total amount of debts outstanding at the end of the financial year, including disputed debts; and

the name and address of the person or organisation to whom an amount of $1,000 or more is owed, and the amount owed, at the end of the financial year.

All annual returns must be lodged with the ACT Electoral Commissioner not later than 31 August after the end of the relevant financial year.